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This entry was published on 2014-09-22
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SECTION 1038
Records and discovery involving abuse and neglect
Family Court Act (FCT) CHAPTER 686, ARTICLE 10, PART 3
§ 1038. Records and discovery involving abuse and neglect. (a) Each
hospital and any other public or private agency having custody of any
records, photographs or other evidence relating to abuse or neglect,
upon the subpoena of the court, the corporation counsel, county
attorney, district attorney, counsel for the child, or one of the
parties to the proceeding, shall be required to send such records,
photographs or evidence to the court for use in any proceeding relating
to abuse or neglect under this article. Notwithstanding any other
provision of law to the contrary, service of any such subpoena on a
hospital may be made by certified mail, return receipt requested, to the
director of the hospital. The court shall establish procedures for the
receipt and safeguarding of such records.

(b) Pursuant to a demand made under rule three thousand one hundred
twenty of the civil practice law and rules, a petitioner or social
services official shall provide to a respondent or the child's attorney
any records, photographs or other evidence demanded relevant to the
proceeding, for inspection and photocopying. The petitioner or social
services official may delete the identity of the persons who filed
reports pursuant to section four hundred fifteen of the social services
law, unless such petitioner or official intends to offer such reports
into evidence at a hearing held pursuant to this article. The petitioner
or social services official may move for a protective order to withhold
records, photographs or evidence which will not be offered into evidence
and the disclosure of which is likely to endanger the life or health of
the child.

(c) A respondent or the child's attorney may move for an order
directing that any child who is the subject of a proceeding under this
article be made available for examination by a physician, psychologist
or social worker selected by such party or the child's attorney. In
determining the motion, the court shall consider the need of the
respondent or child's attorney for such examination to assist in the
preparation of the case and the potential harm to the child from the
examination. Nothing in this section shall preclude the parties from
agreeing upon a person to conduct such examination without court order.

Any examination or interview, other than a physical examination, of a
child who is the subject of a proceeding under this article, for the
purposes of offering expert testimony to a court regarding the sexual
abuse of the child, as such term is defined by section one thousand
twelve of this article, may, in the discretion of the court, be
videotaped in its entirety with access to be provided to the court, the
child's attorney and all parties. In determining whether such
examination or interview should be videotaped, the court shall consider
the effect of the videotaping on the reliability of the examination, the
effect of the videotaping on the child and the needs of the parties,
including the attorney for the child, for the videotape. Prior to
admitting a videotape of an examination or interview into evidence, the
person conducting such examination or the person operating the video
camera shall submit to the court a verified statement confirming that
such videotape is a complete and unaltered videographic record of such
examination of the child. The proponent of entry of the videotape into
evidence must establish that the potential prejudicial effect is
substantially outweighed by the probative value of the videotape in
assessing the reliability of the validator in court. Nothing in this
section shall in any way affect the admissibility of such evidence in
any other court proceeding. The chief administrator of the courts shall
promulgate regulations protecting the confidentiality and security of
such tapes, and regulating the access thereto, consistent with the
provisions of this section.

(d) Unless otherwise proscribed by this article, the provisions and
limitations of article thirty-one of the civil practice law and rules
shall apply to proceedings under this article. In determining any motion
for a protective order, the court shall consider the need of the party
for the discovery to assist in the preparation of the case and any
potential harm to the child from the discovery. The court shall set a
schedule for discovery to avoid unnecessary delay.